Decision
Mr X and Public Appointments Service
From Office of the Information Commissioner (OIC)
Case number: OIC-147755-R7C0N2
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Cite as: [2024] IEIC 147755
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Whether PAS was justified in its decision to redact certain information from a record relating to the candidate selection process for a particular competition under sections 30(1)(a)/(b) or 36(1)(b) of the FOI Act 2024
26 November 2024
The applicant was unsuccessful in the Garda Trainee competition 2023 which was run by the Public Appointments Service (PAS). On 29 January 2024, the applicant submitted an FOI request to PAS for all information relating to himself to include interview notes and any other record that referenced conversations regarding the outcome of the informal and formal review investigations carried out under the CPSA Code of Practice at his request. On 26 February 2024, PAS issued a decision identifying 16 records that fall within the scope of the applicant's request. PAS released records 1-15 and it refused access to parts of record 16 under section 30(1)(a)/(b) of the FOI Act. On 4 March 2024, the applicant requested an internal review of the PAS decision. In its internal review decision of 19 March 2024, PAS affirmed its decision to refuse access to parts of record 16 under section 30(1)(a)/(b) of the Act and it also relied on section 36(1)(a)/(b) of the Act in refusing access to this information. On 25 March 2024, the applicant applied to this Office for a review of that decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant's comments in his application for review and to the submissions made by PAS in support of its decision. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether PAS was justified in redacting certain information from record 16 on the basis of sections 30(1)(a)/(b) or 36(1)(a)/(b) of the FOI Act.
In his application to this Office, the applicant outlined what he believes to be deficiencies in the selection process. He believes that not enough consideration was given to his background and suitability when accessing his competency for the role. He says he sought an informal review of his first interview results and was offered the opportunity to re-sit his interview. He says when he received his results they were at complete variance to the results in his first interview and he fails to reconcile such a wide difference in the grades. He says release of the redacted information would serve the interests of transparency and accountability in relation to the selection process.
It is important to note that this Office has no role in examining the fairness, or otherwise, of the selection process employed by PAS. Furthermore, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the record in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the record where the Act requires a consideration of the public interest.
As outlined above, the applicant requested a formal review investigation be carried out. Record 16 is a copy of the formal appeal report completed by the formal reviewer. The redacted information is taken from the board member interview guidelines in relation to the scoring of candidates and concerns behavioural indicators that the board members use when scoring candidates during interview. Having regard to the content of the redacted information at issue, in my view section 30(1)(a) of the FOI Act is the most appropriate exemption provision to first consider.
Section 30(1)(a) provides for the refusal of a request if the body considers that access to the records sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to (i) prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or (ii) prejudice the "procedures or methods employed for the conduct thereof". Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.
Where a record is exempt under section 30(1)(a), the public interest test at section 30(2) must be considered.
In its submissions to this Office, PAS states that as the redacted information relates to the specific assessment methodology used during the final interviews for Garda Trainee candidates, it expects that its ability to carry out tests and examinations for that specific role would be prejudiced if this information was released. PAS states that the release of this information would result in the specific details of the competency indicators which the Board will probe at interview being released into the public domain. It argues that if the information were to be shared widely, this would undermine the ability for the assessment to function as an objective measure of competence. It states that the impact would be such that an entirely new methodology would need to be developed by PAS and An Garda Síochána identifying new areas of expertise to be assessed. It contends that this would come at a significant cost, and would result in severe delays in the recruitment of Garda Trainees, which would have a negative impact on the ability for An Garda Síochána to be appropriately staffed.
PAS states that this harm could reasonably be expected to occur because once this information is released to the applicant, at least that individual would have information regarding the manner in which he would be assessed as part of any future competition which is not known to any other candidate. It states that this would put the applicant at an unfair advantage to all other candidates, and would undermine the ability for PAS to be sure that the assessment process would be consistent and fair to all candidates. It states that as this is a core requirement of public sector recruitment (as outlined by the CPSA in their Code of Practice), it is reasonable to conclude that if this information is released, PAS would be in breach of its obligations, as set by the CPSA, unless a new competency framework were to be developed for this role.
I understand that key competency indicators were provided to all candidates in the interview familiarisation material. During the course of the review, PAS provided this Office with the interview familiarisation material provided to candidates and with the detailed information for scoring provided to interview board members. Having examined both sets of information, it seems to me that the information provided to candidates is intended to assist them in understanding what will be assessed during the process and to help them to prepare for same. However, this high level information is not the same as the detailed competency indicator information for scoring contained in the Board Member's Interview Guide. The release of the information at issue would result in the specific details of the competency indicators which the Board will probe at Interview being placed in the public domain. In my view, this would amount to the release of instructions to candidates as to how to frame their examples at interview, undermining the ability for the assessment to function as an objective measure of competence. I accept that release of the information which is redacted from record 16 could reasonably be expected to give rise to the harms identified in section 30(1)(a). I find, therefore, that the section applies in this case.
Section 30(2) provides that section 30(1) shall not apply where the body considers that the public interest would, on balance, be better served by granting rather than by refusing to grant the request.
The applicant argues that the relevant selection process was deficient. The applicant says he informed the board that he had a disability and he argues that not enough consideration was provided to him given the guidelines set out in 'Reasonable Accommodation' literature provided to him. He argues that there was a lack of transparency in relation to the interview process and that as a result, there was a deficit in accountability which cannot be in the public interest.
I fully agree that there is a public interest in enhancing the transparency and accountability of PAS in the manner in which it conducts recruitment and selection competitions such as the one at issue in this case. Indeed, section 11(3) of the Act requires public bodies performing functions under the Act to have regard to, among other things, the need to achieve greater openness in their activities and the need to strengthen their accountability and to improve their decision making.
On the other hand, there is also a public interest in ensuring that the effectiveness of the selection process undertaken by PAS and the methods used in those selection processes are not prejudiced. It is also important to note that there are existing mechanisms available to candidates to challenge the fairness of such selection processes. The Commission for Public Service Appointments, as the independent regulator for public service recruitment, is responsible for examining complaints alleging breaches of its published Codes of Practice.
The Code of Practice for Appointment to Positions in the Civil Service and Public Service sets out the regulatory framework for such appointment processes and centres on recruitment principles of probity, merit, best practice, fairness and transparency. However, the level of transparency required or expected does not apply to the extent that the potential future use of the selection processes themselves, or their effectiveness, may be prejudiced. In this case, it seems to me that the public interest in enhancing transparency and accountability of PAS has been served to some extent by the material released to date. I find that the public interest would, on balance, be better served by refusing access to the information redacted from record 16.
In summary, therefore, I find that PAS was justified in refusing access to the information redacted from record 16 under section 30(1)(a) of the FOI Act. As such, I do not consider it necessary to examine the claims for exemption under the other provisions cited.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of PAS to redact certain information from record 16 under section 30(1)(a) of the FOI Act 2014.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Jim Stokes
Investigator